Wisconsin Republicans consider subverting democracy again

Opinion editor's note: Star Tribune Opinion publishes a mix of national and local commentaries online and in print each day. To contribute, click here.

•••

For a little while this year, it looked as though Wisconsin voters had finally broken out of the straitjacket of minority rule in their state. The key to their freedom was an April state Supreme Court election that, turning on the intertwined issues of abortion and gerrymandering, flipped control of the bench from conservatives to liberals.

Since 2011, Wisconsin Republicans have manipulated electoral maps to lock in their legislative dominance, even when a majority of voters chose Democratic candidates. Their grip on the state Legislature has made it impossible to repeal an unpopular 1849 law banning almost all abortions, which went into effect after the U.S. Supreme Court overturned Roe v. Wade. The state Supreme Court election, which turned into the most expensive such race in history, offered voters a singular chance to make their state's politics more democratic.

Janet Protasiewicz, the left-leaning candidate in the nonpartisan contest, was careful not to declare how she would rule in specific cases, but she said that she was personally pro-choice and that she wanted to take a fresh look at the state's "rigged" electoral maps. She won by 11 points, about as near to a landslide as anyone in closely divided Wisconsin is likely to get. The voters' message couldn't have been clearer.

But Wisconsin Republicans may have one move left to thwart their inconvenient citizenry. It looks increasingly likely that they could use their nearly impregnable majority to impeach Protasiewicz before she's heard a single case. "Anyone who cares about democracy should consider this threat to be deadly serious," said Ben Wikler, the chair of the Democratic Party of Wisconsin. The only way to head off this autocratic power play, he said, "is if there's a massive uproar that drowns out the voices of election overturners and Constitution shredders."

The pretext for impeaching Protasiewicz is that she won't agree to recuse herself from redistricting cases, given her campaign comments about the state's unfair maps, and the $10 million that the Democratic Party put into her race. This is, to put it mildly, a flimsy rationale. Wisconsin's Judicial Commission has already dismissed a complaint that she violated court strictures by weighing in on contentious issues that might come before her as a judge. And the conservative majority on Wisconsin's Supreme Court adopted a rule in 2009 that justices did not need to recuse themselves from hearing cases involving their campaign donors.

Impeachment, which requires only a simple majority of the Assembly, may be easier for Republicans than removal, which requires a two-thirds vote in the state Senate. (Given the size of their Senate majority, they couldn't afford to lose a single vote.) But some observers think that even if Republicans impeach Protasiewicz, they have no intention of actually holding a Senate trial. Once impeached, a justice is suspended from hearing cases while the process plays out. But since the state Constitution is silent on a timeline for that process, Republicans could impeach Protasiewicz and then leave her in legal oblivion indefinitely.

In that case, the Democratic governor, Tony Evers, would never be able to appoint a replacement, and the court would be deadlocked, unable to do anything about either the gerrymandering or the abortion ban.

"Senate Republicans in Wisconsin are basically saying, 'Yeah, we're not going to have a trial. We won't do anything,' " said Sykes, whose ex-wife is a former Wisconsin Supreme Court justice. "So in other words, she would never get to due process. And she would sit in limbo, theoretically, forever. So they just wipe away the election."

It's impossible to know whether Republicans could get away with this maneuver legally. Impeachment without a trial would push us into "uncharted constitutional territory," Wikler said, and it might even provoke a constitutional crisis. The issue could make its way to Wisconsin's Supreme Court, which, with Protasiewicz suspended, would probably be divided 3-3.

Wisconsin Democrats are hoping voters might be able to stop impeachment before it gets that far. Even with gerrymandering, at least some Republican lawmakers could be vulnerable to a voter backlash: 12 Republicans in the Assembly and six in the state Senate come from districts Protasiewicz won. On Wednesday night, Wikler said, volunteers started knocking on doors in Republican districts all over the state to speak to voters about a potential impeachment. "Legislative offices are getting flooded with calls and emails from constituents as we speak," he said. An advertising campaign will start soon. "Voters hate having their votes ripped away," he added. We'll soon find out whether Wisconsin Republicans think they have to pretend to care.